The Irish Constitution: Explained by Darrell FiggisFiggis, Darrell
History
The Irish Constitution: Explained by Darrell Figgis
Figgis, Darrell
Ireland -- Politics and government -- 1922-1949
It may be asked, however, how safeguards such as these, together with the
qualities of sovereignty declared in the Constitution to be the
Fundamental Rights of the people, shall be protected. For it is a
temptation to all governments to find an easy way out of difficulties by
riding roughshod over rights and safeguards, however earnestly they may be
declared. There is only one answer. In the making of constitutions there
can be only one answer. It is that the Judiciary is the People's
Judiciary, and the third part of the organic whole of Government which the
people create. Article 64, therefore, reads that "the judicial power of
the High Court"--with appeal to the Supreme Court--"shall extend to the
question of the validity of any law having regard to the provisions of the
Constitution." The Judiciary is the interpreter of laws. It is therefore
the interpreter of the Fundamental Law. And it is therefore the
interpreter of the Fundamental Law and the protector of the Fundamental
Law, as against all other laws of the Legislature that may violate it, not
to say arbitrary acts of the Executive that may neglect it.
It must be so. There is no other way to protect the guarantee of
fundamental rights written carefully in a people's constitution. Without
some such provision a Constitution might be written in water, and its
guarantees set aside by any powerful executive, or any executive not
instantly answerable to the people's will. A provision of this kind is,
therefore, a necessary democratic safeguard. It is true that in the United
States the judicial review of the Supreme Court over legislative and
executive acts has led to unfortunate decisions and much acrimonious
discussion. The evils of an institution are always apparent, and no
institution but has its evils. The evils that would have come into
existence had that institution not been there, however, are not apparent.
They are the incalculable part of the bargain; and, being incalculable,
are inevitably neglected in argument. Yet they may prove to be the
overwhelming factor of the argument. So it is in this case. It would be
blindness to neglect it. The mere existence of the Judicial Review in the
United States has unquestionably prevented many an arbitrary act of the
Executive in defiance of the rights ensured by the Constitution; and if
the Supreme Court has, as it undoubtedly has, abused its power of
interpretation, the remedy is, not to sweep away that Judicial Review, and
so to jeopardise the provisions of the Constitution, but to amend the
Constitution in plainer terms, or to amend the Supreme Court. For it is
plain that without Judicial Protection of the Fundamental Law (as the
Judiciary is required to protect, interpret and enforce the ordinary law)
its clearest provisions could be neglected at pleasure.
Public-domain text, read in full here on John Shaqi.
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